BAJARH (Migration)

[2019] AATA 6741

BAJARH (Migration) [2019] AATA 6741 (20 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Pritam Singh Bajarh

CASE NUMBER:  1725123

HOME AFFAIRS REFERENCE(S):     BCC2017/2874734

MEMBERS:Dr Jason Harkess

DATE:20 December 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision to cancel the Applicant’s Student (Temporary) (Class TU) (Subclass 573) visa and, in its place, substitutes a decision not to cancel the visa

Statement made on 20 December 2019 at 2:24pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – enrolment in a registered Higher Education course – applicant ceased enrolment – demonstrated real efforts to re-engage with studies – decision under review set aside

LEGISLATION

Migration Act 1958, ss 48, 116, 140
Migration Regulations 1994, Schedule 8; Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

[ 1 ]The Applicant is a citizen of India and is 24 years old. He seeks review of a decision made by a delegate of the Minister for Home Affairs (‘the delegate’) on 9 October 2017 cancelling his Subclass 573 student visa pursuant to s 116(1)(b) of the Migration Act 1958 (Cth) (‘the Act’).

[ 2 ]The Applicant’s student visa was granted on 28 October 2014 with an original expiry date of 15 March 2019, providing for more than four years and four months during which the Applicant would be permitted to reside in Australia for the purposes of full-time study. Specifically, the visa was granted to allow the Applicant to study a course in English language, followed by a Certificate IV in Business Administration, a Diploma of Business, an Advanced Diploma of Business, and then a Bachelor of Business (Information Systems Management).

[ 3 ]The delegate cancelled the Applicant’s visa on the basis that he had breached that condition of the visa which required him to continue to be enrolled in a registered course of study.

[ 4 ]The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

HEARING OF APPLICATION

[ 5 ]The Tribunal convened a hearing to consider the merits of the application on 20 September 2019. The Applicant appeared before the Tribunal via video link to give evidence and present arguments.

[ 6 ]For the following reasons, the Tribunal has decided to set aside the decision to cancel th Applicant’s visa and, in its place, substitute a decision not to cancel the visa.

CONSIDERATION OF CLAIMS AND EVIDENCE

[ 7 ]The Applicant’s visa was subject to a number of conditions as prescribed by Schedule 8 of the Migration Regulations 1994 (Cth) (‘the Regulations’) when the visa was granted. In the present case, the issue is whether the Applicant has breached condition 8202 of the Regulations. If the Applicant has breached that condition, the visa may then be cancelled pursuant to s 116(1) of the Act.

Did the Applicant Breach Condition 8202?

[ 8 ]Condition 8202(2)(a) of the Applicants visa require that the Applicant remain enrolled in a full-time registered course. In the delegate’s decision record, the delegate identified the period from 9 February 2017 to 9 October 2017 as the relevant period in which the Applicant was not enrolled in a registered course. This amounted to 8 months during which the Applicant was alleged to be in continuous breach of the visa.

[ 9 ]The delegate’s finding was based on a report which the delegate had obtained from the Department of Education and Training’s Provider Registration and International Student Management System (‘PRISMS’). The PRISMS database is maintained for the purposes of administering the Education Services for Overseas Students Act 2000 (Cth) (‘the ESOS Act’).[1] It provides a means for education providers in Australia to comply with legislative requirements relating to international students studying in Australia. The PRISMS database allows registered course providers to report changes in relation to a student’s enrolment status and to notify the Department of Education and Training of any issues arising from a student’s general compliance with visa conditions once a visa has been issued. In particular, and of relevance to the present case, it may be used by course providers to report that they have cancelled a particular student’s Confirmation of Enrolment (‘CoE’) in a course for which they had previously been enrolled and the reasons for doing so.

[1] See Department of Education and Training, Provider Registration and International Student Management System (PRISMS): Provider User Guide (Department of Education and Training, May 2018) [1.1].

[ 10 ]The PRISMS report obtained by the delegate indicated that the Applicant’s course provider had cancelled the Applicant’s enrolment in Bachelor of Business (information Systems) on 9 February 2017 due to the non-commencement of studies.

[ 11 ]The Department of Home Affairs wrote to the Applicant on 4 September 2017, notifying him of its intention to consider cancelling his student visa (‘the NOICC’). That notice set out particulars of the alleged breach by the Applicant of Condition 8202. The NOICC invited the Applicant to comment on the allegation that he had been in breach of Condition 8202 before the Department moved to cancel his visa. The Applicant did not respond to the NOICC.

[ 12 ]At the hearing before the Tribunal, the Applicant admitted that he was not enrolled in a registered course of study for the period 9 February 2017 to 9 October 2017.

[ 13 ]Based on the available information and material, the Tribunal is satisfied that the delegate was correct in reaching the conclusion that the Applicant was in breach of condition 8202(2)(a) of his visa.

Consideration of the Discretion to Cancel the Visa

[ 14 ]Having found that the Applicant has not complied with a condition of the visa, the Tribunal must consider whether the visa should be cancelled. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. However, the Tribunal is mindful that it should consider the circumstances of this case, including any matters raised by the Applicant in the course of the hearing, and any relevant matters identified in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’. The matters that ought to be considered are specifically listed in PAM3 as follows:

·the circumstances in which the ground for cancellation arose, including consideration of whether there were any extenuating circumstances beyond the Applicant’s control that led to the grounds for cancellation (as a general rule a visa should not be cancelled where such circumstances were beyond the control of the visa holder);

·the purpose of the Applicant’s travel to and stay in Australia, including an assessment as to whether he has a compelling need to remain in Australia;

·the extent of the Applicant’s compliance with visa conditions, including an assessment as to the extent to which the Applicant has otherwise complied with visa conditions, both now and on previous occasions;

·the degree of hardship that may be caused to the Applicant and any family members, including consideration of whether they are likely to face financial, psychological, emotional or any other hardship as a result of a cancellation decision;

·the Applicant’s past and present behaviour towards the Department (eg, whether they have been truthful and co-operative in their dealings with the Department);

·whether there are persons in Australia whose visas would, or may, be cancelled by the operation of s 140 of the Act;

·whether there are mandatory legal consequences arising from a decision to cancel the visa;

·whether Australia has obligations under any relevant international agreements that would be breached as a result.

Circumstances Giving Rise to Breach of Condition 8202

[ 15 ]At the hearing before the Tribunal, the Applicant stated that following his arrival in Australia in late 2014, he started and successfully completed his English language course. He then commenced a Certificate IV in Business Administration. However, he found the work in that course difficult. He said that, while the teaching system in Australia was good, his understanding of it was poor. He said that, back in India, he never used computers – they used paper where he came from. He referred to the fact that, in his schooling in India, teachers used a blackboard. He said he was unfamiliar with the automated computer systems involving doing and submitting assignments online.

[ 16 ]The Applicant stated that, for his first year of full-time studies in 2015, he studied the Certificate IV in Business Administration at Zenith Business Academy (‘Zenith’). He said he attended 95% of his classes. However, he said he did not pass any units. In 2016, he attempted the units he had failed for a second time. On this occasion he passed 40% of the units in which he was enrolled. He then made a third attempt to pass the units that he had continued to fail. He was not successful.

[ 17 ]After his third attempt, the Applicant stated that Zenith refused to allow him to continue with his enrolment in the course due to his apparent inability to successfully progress. According to the Applicant, Zenith terminated his enrolment in the Certificate IV in Business Administration after approximately almost 2 years of full-time study in the course. The Applicant has provided an academic transcript of his academic progress at Zenith which corroborates his account of his study experience there. The Tribunal accepts the Applicant’s evidence in this regard.

[ 18 ]Following the termination of his enrolment, the Applicant stated that he then became depressed. His depression, he said, arose from his failure to fulfil his dreams of successfully studying in Australia. He said that he did not seek any medical or other kind of professional help in relation to his depression. He simply stopped studying. It was then that the days in breach of Condition 8202 began to accrue, starting 9 February 2017.

[ 19 ]The Tribunal inquired of the Applicant as to whether he knew he was in breach of his visa when he ceased his enrolment and failed to enrol in another course. He admitted that he was aware of the breach. The Tribunal pressed the Applicant on the issue of why he could not find another course in which to enrol, and why he let the breach of Condition 8202 continue for such an inordinate amount of time. He said that he was confused and depressed and that he did not know what to do. He said that he consulted his family in India regularly, to seek their advice on his predicament. He also said that he spent a lot of time at home searching online for possible solutions. The Applicant stated that he was so stressed by the situation that he cancelled a return flight home to India, a non-refundable ticket which he had paid for, being a trip that was for the purpose of attending his cousin’s wedding. The Applicant produced a copy of the airline ticket and his itinerary to corroborate this claim.

[ 20 ]At the hearing before the Tribunal, the Applicant did not produce any independent medical or pycyhological evidence that might have corroborated his claims of having ongoing issues with depression. The Tribunal suggested that if he wished to maintain his claim that he was depressed, and that his depression was the cause of his cessation of studies, he should obtain an independent opinion of a psychologist or psychiatrist and provide that opinion to the Tribunal. The Tribunal suggested to the Applicant that any such report should address the issue of whether the Applicant may have been suffering a clinically diagnosable mental health condition, such as depression or anxiety, that may have impacted on his ability to continue with his studies.

[ 21 ]Following the hearing, the Applicant lodged a reported dated 18 October 2019 authored by Dr Indi Kaur, a clinical psychologist based in Sydney. Dr Kaur reported that she had seen the Applicant at her clinic on 15 October 2019. Regrettably, Dr Kaur’s report does no more than report what the Applicant told her. She reports an account of the Applicant’s history of studying in Australia that is largely consistent with the account he provided to the Tribunal. Dr Kaur refers to the Applicant’s own self-diagnosis of depression and anxiety. However, she does not venture into giving her own qualified opinion as to whether the Applicant was suffering any kind of clinically diagnosable mental illness that caused him to cease his studies for the breach period in 2017. The only opinion that she gives is that ‘it is important for [the Applicant] to continue and complete his education.’ That is not an opinion that appears to draw upon Dr Kaur’s qualifications in psychology. Ultimately, Dr Kaur’s report does not offer any assistance for the purposes of the Tribunal making a determination as to whether the Applicant was truly suffering from depression, anxiety or some other kind of mental illness for the most-part of 2017. Certainly, the conduct of the Applicant during this period is consistent with him suffering a brief spell of depression that could have caused him to cease his studies. However, there is no cogent evidence that clearly demonstrates this.

[ 22 ]In the end, the Tribunal cannot be satisfied that the Applicant was actually suffering a clinically diagnosable mental illness at the time of his breach of his student visa from February to October 2017. However, the Tribunal accepts the evidence of the Applicant that he felt considerably stressed, depressed and anxious throughout this period, and that his studies were significantly impacted as a result.

[ 23 ]Following the breach period, the Applicant has re-engaged with his studies. He has provided evidence that he started a Certificate IV in Accounting in January 2018. He completed this certificate in early 2019. He is now partway through a Diploma of Accounting. He appears to be making some progress in the Diploma. He has passed 7 out of 11 Diploma subjects so far. It appears he has failed 4 units and will have to repeat them. He has provided evidence that he is currently enrolled in a Bachelor of Business (Leadership and Management) which, presumably, he will only be eligible to commence once he has completed the Diploma. While he is still facing some setbacks, the evidence he has provided demonstrates that the Applicant’s studies are ‘back on track’ and he is making some degree of effort to restore himself to a situation that is consistent with being the holder of student visa in Australia.

[ 24 ]Ultimately, the Tribunal is not satisfied with the Applicant’s explanation for breaching his visa for a continuous 8-month period. The Tribunal considers that he should have been more proactive in seeking to re-engage with his studies. Nevertheless, given that he has demonstrated real efforts to re-engage with his original plans of studies, on balance this weighs in favour of not cancelling his visa. The Tribunal has also taken into account the fact that he is still relatively young and that poor decision-making processes, often associated with youth and inexperience, were likely to have contributed to the 8-month continuous period of non-enrolment.

Purpose of Applicant’s Stay in Australia

[ 25 ]The purpose of the Applicant’s stay in Australia, as reflected in the essential purpose of a student visa, is to study on a full-time basis. Regrettably, that purpose was effectively defeated when he ceased enrolment for 8 months. However, the Applicant has made demonstrated efforts to re-engage with his studies. It appears he is genuinely making an effort to complete that which he originally intended to complete, although it is taking a lot longer than anticipated.

[ 26 ]The visa would have now expired, even if it had not be cancelled. While it is not within the ambit of the Tribunal’s consideration in relation to the present application on review to grant him a further student visa, it is evident that he will need to apply for another visa in order to complete his intended studies.

Extent of Compliance with Visa Conditions

[ 27 ]Apart from the Applicant’s non-compliance with Condition 8202, the Tribunal is not aware of any other breaches of his visa conditions.

Hardship

[ 28 ]The Tribunal has given consideration to the Applicant’s expressed desire to remain in Australia and complete his education. The Tribunal accepts that it would be very difficult for him and his family were he not allowed to complete successfully his planned studies.

Applicant’s Behaviour Towards Department

[ 29 ]The Tribunal has given consideration to the Applicant’s past and present behaviour towards the Department of Home Affairs. There is nothing adverse in this respect.

Other Visa Holders

[ 30 ]There do not appear to be any consequential cancellations under s 140 of the Act that will follow if the Applicant’s visa is cancelled.

Legal Consequences

[ 31 ]The Tribunal notes that if his visa is cancelled, the Applicant will become an unlawful non-citizen and liable to detention under s 189 and removal under s 198 of the Act if he does not voluntarily depart Australia. A bar under s 48 of the Act will be imposed, limiting his options to apply for further visas from within Australia. He will also be subject to a three-year exclusion period where he will not be eligible to have any temporary visa application approved if he applies for a visa that requires Public Interest Criterion 4013 to be met.

[ 32 ]The Tribunal considers these consequences to be unduly punitive in the circumstances of this case. He should be permitted to apply for another student visa so he can complete his studies which, as noted above, now appear to be properly resumed.

International Obligations

[ 33 ]The Tribunal notes that Australia’s international obligations do not appear to be engaged by the circumstances of this case.

Conclusion

[ 34 ]In all the circumstances, the Tribunal is of view that the Applicant’s visa ought to be cancelled.

DECISION

[ 35 ]The Tribunal sets aside the decision to cancel the Applicant’s Student (Temporary) (Class TU) (Subclass 573) visa and, in its place, substitutes a decision not to cancel the visa.

Dr Jason Harkess
Member